California's Weak Case Against Teacher Tenure

State constitutions are law's Cinderellas. Ignored most of the time by their cruel stepsisters in the federal courts, they emerge suddenly as belles of the ball when a spectacular state court decision puts them front and center. The latest Prince Charming is the California judge who struck down teacher tenure as violating the right to education and equal protection. Unfortunately, the glass slipper doesn't fit. The decision yesterday by Superior Court Judge Rolf Treu is terribly reasoned -- and it should be reversed.

Begin with the obvious: California's teacher tenure laws seem hard to justify, apparently allowing tenure after two years, even before the credentialing process is complete. As a result, some teachers might be tenured without being credentialed.

But if every ill-drafted state and federal law were held unconstitutional, every court would have to be night court while the judges toiled overtime to strike them down.

That's why a cardinal principle of all constitutional judging is that a law's foolishness doesn't automatically make it unconstitutional. To think otherwise would be to make judges into superlegislators. In the U.S. system, the judges are supposed to strike down laws not because the laws are dumb, but only where the laws violate provisions of the state or federal constitution.

So how did California's teacher tenure laws violate the state constitution? The court's two-part reasoning was thin to the point of being emaciated. First, it observed that the state constitution guarantees a right to education and guarantees equal protection of the laws. Second, it "found" that teacher tenure laws can tenure ineffective teachers -- which it said was a violation of California children's right to education.

The logic of this holding is pretty obviously flawed. All sorts of policies and rules affect the quality of what goes on in the classroom. Do all policies that reduce the quality of education violate the state constitution? Obviously not -- or the court would have to take over the state school system and review every lesson plan for effectiveness. There was also no precedent supporting this expansive reading of the state constitution.

Then the court addressed equal protection. This concern sounds superficially more plausible. If poor schools get ineffective teachers, perhaps this violates children's right to an equal education. A few years ago, New York's highest court read its state constitution to require roughly equal funding of schools in rich and poor districts -- an activist decision nevertheless grounded in equality principles.

But the California court barely explained its logic. In a single, forlorn paragraph, it relied on a sentence from a 2007 report by the state Department of Education that asserted poor schools were disproportionately likely to get ineffective but tenured teachers. This might well be true -- but the mere assertion can't be enough to strike down the law.

Even if disproportionate distribution of bad teachers were established with significant evidence, it would require the court to establish a prior principle that unequal distribution of educational resources violates the state constitution -- as the New York court held. This the California court didn't do. And that is no surprise, because it would have required a progressive overhaul of California's system of education.

The court cited Brown v. Board of Education to support its rhetoric of equality. But this was window dressing, not law. In theory, a court could extend Brown to develop a jurisprudence of equal educational opportunity. The California court was using it to create a headline.

In short, the California decision, by a Republican appointee, reads like a transparent attempt to redirect the tools of liberal judicial activism to strike at union-driven employment protections.

Why, then, was the decision embraced by Secretary of Education Arne Duncan, presumably after consultation with the White House?

One idealistic possibility is that Duncan wants to reform our national educational system to make it more resource-equal, and sees the California decision as a small step in that direction. According to this theory, what matters about the court's decision is that it relies on the idea of a right to equal educational access, even if that right is poorly established. The fact that a more conservative judge borrowed the approach of liberal activism could perhaps be seen as a victory for the liberals, not a defeat.

Another, more cynical interpretation of the Barack Obama administration's endorsement of this ill-reasoned decision is that Duncan sees it as a way to get around strong teachers' unions. If they're badly designed, teacher tenure provisions should be changed by the legislature, not the courts. But it can be politically hard to beat unions in the state legislature, especially if you're a Democratic administration that needs the unions for votes and organization. A court judgment is an end-run around the political process, and hence around the union.

The worst possibility of all is that we're witnessing the total breakdown of the ever-tenuous distinction between constitutional law and politics. On this view, Duncan likes the court's decision because he dislikes the California teacher-tenure rules -- nothing more.

Anyone who remembers the Bush v. Gore litigation knows that constitutional law isn't free from politics. But recognizing the reality of politics shouldn't lead us to abandon the effort to reserve constitutional reasoning for big principles, not narrow policy preferences. A constitution -- even the California state constitution -- isn't a machine to be used by the courts for everyday governance and the removal of poorly made laws. Use it for the wrong purposes, and you won't be able to wheel it out when you need to confront the big issues. The appellate courts should reverse the trial court's decision, not to help students or protect teachers, but to keep the constitution safe to protect our most fundamental rights.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."
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